State v. Purdy
| Decision Date | 14 March 1989 |
| Docket Number | No. 54897,54897 |
| Citation | 766 S.W.2d 476 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Charles PURDY, Jr., Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Harold E. Horsley, Jr., Ballwin, for defendant-appellant.
Timothy M. Joyce, Pros. Atty., Warrenton, for plaintiff-respondent.
Defendant appeals after he was convicted by a jury of driving with a revoked license, § 302.321, RSMo 1986, and sentenced in accordance with the jury's assessment to 30 days' imprisonment plus a fine. We affirm.
Defendant contends the state did not make a submissible case. Our review of submissibility is limited to determining whether there was sufficient evidence from which reasonable persons could find defendant guilty as charged. State v. Stanback, 719 S.W.2d 896, 897 (Mo.App.1986).
The state's case came from two sources. First, a highway patrol officer testified he saw defendant driving his vehicle over the center line in Warren County on June 2, 1986, and after running a computer check, gave defendant a ticket for "driving while revoked." Second, the state introduced defendant's Department of Revenue records which revealed that his license had been revoked for 12 months beginning March 12, 1986. Counsel for defendant stated affirmatively that he had no objection to the admission of the records. The records revealed that notice of revocation had been sent to defendant. These facts are sufficient to support a conviction.
At trial, defendant's defense was that he had never received notice of the revocation, the notice having been sent to the wrong address. He contended he notified the director of his changed address. This was a factual issue well argued to the jury and resolved against defendant. His sole basis on appeal for claiming that the evidence was insufficient is that "the conviction by the municipal court of Crystal City was invalid...." This is a collateral attack on prior conviction and cannot be considered for the first time on appeal. State v. Reid, 391 S.W.2d 200, 205-6 (Mo.1965).
Defendant's second point is that the trial judge erred in hearing the case after he had previously disqualified himself. The record reveals that on October 8, 1986, Judge Hodge entered the following order: Nothing in the record indicates that either Judge Hodge or the Supreme Court took any further action to appoint a special judge. Apparently, Judge Hodge made the disqualification order under Rule 32.10 which provides in pertinent part:
If the judge is related to any defendant or has an interest in or has been counsel in the criminal proceedings or disqualifies himself for any other reason:
....
(b) If the case is being heard by the only circuit judge in the circuit, or by an associate circuit judge after the disqualification of the only circuit judge in the circuit, then the judge shall request this Court to transfer a judge.
(Judge Hodge is the only circuit judge in the 9th Judicial Circuit.)
The trial of this case began on December 17, 1987, with Judge Hodge presiding. Cases hold that a disqualified trial judge may rule on matters he has under submission at the time of the disqualification, but that he has no further authority in a case. State ex rel. Johnson v. Mehan, 731 S.W.2d 887, 888 (Mo.App.1987). Nothing in the record indicates Judge Hodge had any matters under submission when he disqualified himself. After disqualification, a judge has no jurisdiction. Id. Some cases have gone on to say that any actions taken after the disqualification are void. Byrd v. Brown, 613 S.W.2d 695, 700 (Mo.App.1981).
The state argues that defendant was not prejudiced and that by acquiescing in and not objecting to Judge Hodge's participation, defendant waived the objection. Our more recent cases would indicate that once the disqualification order is entered, the trial judge is prohibited from any further action in the case other than ruling on matters already under submission. We have used the terms "void" and "no jurisdiction." We note, however, that in Byrd, the leading case on the issue of a court's authority after disqualification, the court in reference to further acts being void stated in a footnote, 1
None of our cases which talk in terms of no jurisdiction and void orders consider the effect of a judge setting aside the disqualification or the parties waiving their objection to the judge's further participation. In State v. Perkins, 339 Mo. 27, 95 S.W.2d 75 (1936), the court said
If a defendant, with consent of the court and prosecuting attorney, may waive the right to a change of venue from the county, after the change has been granted, no logical reason can be advanced why the right to a change from the judge cannot be waived after the change has been granted. There is no difference in principle.
Id. 95 S.W.2d at 77. In so holding the court said a defendant's right to disqualify a judge is not a constitutional right, but rather a statutory privilege which may be waived before or after the order is entered. Id. 95 S.W.2d at 76.
In State v. Harmon, 243 S.W.2d 326 (Mo.1951), the Supreme Court said "a defendant in a criminal case may expressly or by acts and conduct waive statutory and constitutional provisions conferred for his protection ... [including the] right to disqualify a judge...." Id. at 328.
In Prather v. Prather, 263 S.W.2d 57 (Mo.App.1953), the regular judge was disqualified in a divorce case. A special judge heard the case,...
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State v. Beadshaw
...change of venue for cause, the rationale for the general principles set forth in those cases should apply. In fact, in State v. Purdy, 766 S.W.2d 476, 478 (Mo. App. 1989), the Eastern District of this court applied the rule of Harmon to a waiver of change of judge, after the adoption of Rul......
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Heintz v. Hudkins
...unnecessary when Judge Dickerson entered the order of substitution April 26, 1991, referred to earlier in this opinion. State v. Purdy, 766 S.W.2d 476 (Mo.App.1989), is analogous, though not identical, to the circumstances here. In Purdy, a judge who disqualified himself on his own motion l......
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State v. Patton, 26222.
...was justified in stopping the van based purely on the fact that the operator crossed the center line of the road. See State v. Purdy, 766 S.W.2d 476, 477 (Mo.App.1989); § 304.015.2. As the arresting officer, Clawson's testimony alone was sufficient to support Defendant's conviction. Martin,......
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State v. Huff
... ... A letter dated January 25, 1993 from the Department of Revenue to Tami Huff was admitted into evidence, which provided Defendant notice of her revocation and how to reinstate her license. See, State v. Purdy, ... 766 S.W.2d 476, 477 (Mo.App.1989). Generally, mail is considered received three days after it is mailed. See, e.g., Rule 20.01(e). In addition, her driving record indicated her license had been revoked again on September 28, 1992 for refusal to submit to a chemical test. This revocation ... ...